HARI MOHAN DALAL Vs. PARAMESHWAR SHAU

JUDGEMENT

(1.) In these cases Mr. Suhrawardy and Graham, JJ. have differed on a question of law which has been referred to us under Section 98, Civil P.C., in the following terms: Whether in the circumstances of the present cases, time to be reckoned under Section 181, Lim. Act, should be counted from the date of the decrees of the High Court dismissing the appeals from the decrees of the lower appellate Court, or from the dates of the pronouncement of the decrees of the lower appellate Court, or whether the respondents are entitled to get deduction of the period occupied by the appeals to this Court.

(2.) The facts which give meaning to this question of law are as follows: The plaintiff brought a series of rent suits against tenants and on 3l July, 1919 obtained decrees from the Court of first instance for the amount of his claim. During the pendency of appeals in the lower appellate Court, the plaintiff realized by execution the whole of his decretal amounts. Thereafter, on 14 August 1920, the lower appellate Court allowed the appeals in part and reduced the amounts for which the plaintiff could get decrees. On 8 August 1923 the plaintiff's appeal from this decision was dismissed by the High Court. In May a June, 1924 the tenants made applications under Section 144, Civil P.C., for restitution of the amounts which in execution of the trial Court's decree had been paid by them in excess of the sums ultimately decreed to be due. These applications have been resisted by the plaintiff upon the ground of limitation, the contention being that Art. 181 of the Schedule of the Lim. Act of 1908 governs this matter and that the right of the tenants to apply for restitution under Section 144, Civil P.C., accrued to them more than three years before May 1924, namely, on 14 August 1920 when the lower appellate Court reduced the amounts of the plaintiff's decrees. The Munsif and the District Judge have both rejected the plaintiff's contention and Graham, J., in this Court has taken the same view. Suhrawardy, J., on the other hand has thought the plaintiff's contention to be correct.

(3.) Both the learned Judges in this Court are in agreement that the article applicable to the case is Art. 181 and not Art. 182. Thinking this question to be well settled so far as this High Court is concerned they have not thought fit to state the point of law, upon which they differed, as broadly as they might have done, e.g., by making a reference on the question whether the applications under Section 144, Civil P.C., are barred by limitation. The reference has been made in a limited form and upon the basis that the article applicable is Art. 181. This has been done deliberately by the learned Judges and I see no reason to quarrel with this exercise of discretion. This method of reference is now provided both by Clause 37, Letters Patent, and by Section 98 of the Code and the method will be productive of much disorder and absurdity unless the terms of these enactments are strictly complied with. However tempting it may be to argue other points than the point or points referred, the temptation must be resisted. At the hearing we accordingly refused to discuss once more the question of the applicability of Art. 181 to applications under Section 144 of the Code. It is a matter upon which different High Courts have taken different views and are likely to go on taking different views for many years.